Can a Texas school district sell alcohol at a banquet hall inside its football stadium when it leases the space for private events?

Plain-English summary

Canyon Independent School District rebuilt the locker-room building at the south end of a football stadium it owns and added a second-floor banquet facility. The building sits within the stadium's enclosed perimeter, has no classrooms, and is not meant for educational activities; the nearest school, an elementary school, is about three-quarters of a mile away. The District wanted to lease the banquet facility for private events where alcohol could be served, but not at school-related or sanctioned activities and not while the stadium is in use for school activities. The Randall County Criminal District Attorney asked the AG whether that banquet facility counts as a "building of a public school" under Education Code section 37.122(a), because that answer would decide whether alcohol can be possessed, sold, or consumed there.

The AG did not give a definitive answer. Section 37.122(a) bars possessing an intoxicating beverage for consumption, sale, or distribution while on the grounds or in a building of a public school, or inside any enclosure, field, or stadium where a school athletic event is being held. Subsection (a-1) carves out a narrow defense for a performing-arts facility during an event outside regular school hours that the district does not sponsor. But the Education Code never defines "building of a public school." Reading the words by their ordinary meaning, and noting that the statute distinguishes a "school district" (subsection (a-1)) from a "public school" (subsection (a)), the AG concluded the prohibition concerns a building of an elementary or secondary school, not every district building. The statute, though, gives no specific test for when a particular building qualifies.

The DA pointed to an earlier letter opinion (LO-98-002), which concluded that section 37.122 did not bar alcohol sales at a school district's football and track facility except during a school athletic event, drawing on Rodgers v. Tex. Liquor Control Bd., a case about a different statute (the predecessor to Alcoholic Beverages Code section 109.33). The AG explained that neither Rodgers nor LO-98-002 held, as a matter of law, that a building in a stadium can never be a "building of a public school," and neither set a definitive test for all cases.

Because there is no bright-line test, the AG reasoned a court would read section 37.122 in light of the district's related duties under section 38.007 to keep school-related activities alcohol-free and to provide a safe, alcohol-free environment for students, and would then weigh all the facts and circumstances of the building's relationship to a public school. The DA supplied some relevant facts (location relative to other school buildings, no classrooms), but the AG said others could matter too: a school might use a non-classroom building for other authorized purposes, and although the District owns all the property, it might assign a school rights of possession and control. Sorting through those facts is beyond the AG opinion process, so the office could not say as a matter of law whether this banquet facility is a "building of a public school." In a footnote, the AG flagged, without deciding, that the District should also consider whether leasing the facility for private use meets the standard for using school property for private purposes (citing Royse Indep. Sch. Dist. v. Reinhardt), and that the opinion did not address other situations like sacramental use of alcohol on leased school premises.

What this means for you

If you are a school district or administrator weighing alcohol at a leased facility

Based on this opinion, there is no automatic answer. Whether section 37.122(a) applies to a particular building turns on a fact-specific analysis of the building's relationship to a public school, not just on its location or the absence of classrooms. The AG did not bless or forbid alcohol at the Canyon ISD banquet facility; it identified the framework and left the determination to the facts. Districts in this position would want legal counsel to apply that framework before serving alcohol.

If you are a prosecutor or law-enforcement official

The opinion sets out the elements of the section 37.122(a) prohibition and the related section 38.007 duties, and confirms that subsection (a-1) provides only a narrow performing-arts-facility defense. It does not resolve whether a stadium banquet building is covered; that is a fact question.

If you operate or rent an event venue on school property

The opinion notes the separate question (which it did not decide) of whether leasing school property for private events is a permissible private use that does not impair its use as school property, citing Royse Indep. Sch. Dist. v. Reinhardt.

Common questions

Q: Did the AG say a school district can sell alcohol at a stadium banquet hall?
A: No. The AG declined to answer as a matter of law, because whether the building is a "building of a public school" under section 37.122(a) depends on the specific facts, which an AG opinion cannot resolve.

Q: Why couldn't the AG just answer?
A: The Education Code does not define "building of a public school," and there is no definitive test. The answer turns on all the facts and circumstances of the building's relationship to a public school, which is outside the scope of an AG opinion.

Q: Does the building automatically qualify because it has no classrooms?
A: Not necessarily. The AG said the lack of classrooms is relevant but not decisive, because a school could use a non-classroom building for other authorized purposes.

Q: What about the old letter opinion on football stadiums (LO-98-002)?
A: The AG explained that LO-98-002 and the Rodgers case did not hold that a stadium building can never be a "building of a public school," and did not set a test for all cases.

Q: What factors would a court weigh?
A: The building's location relative to other school buildings, whether it has classrooms, how a school actually uses it, and whether a school holds rights of possession and control, read alongside the district's duty under section 38.007 to keep school activities alcohol-free.

Background and statutory framework

Education Code section 37.122(a) prohibits possessing an intoxicating beverage for consumption, sale, or distribution on the grounds or in a building of a public school, or inside an enclosure, field, or stadium during a school athletic event; subsection (a-1) provides a narrow performing-arts-facility defense. The Education Code does not define "building of a public school," so the AG applied the ordinary meanings of "building" and "public school" (citing Henley v. State and dictionary definitions, and noting the Penal Code's separate definition in section 28.01). It read section 37.122 in the context of the district's section 38.007 duties to keep school-related activities alcohol-free.

The AG addressed the DA's reliance on LO-98-002 and Rodgers v. Tex. Liquor Control Bd. (a case about the predecessor to Alcoholic Beverages Code section 109.33), concluding neither set a definitive rule for stadium buildings. Reading statutes in context (In re Academy, Ltd.), the AG concluded the application of section 37.122(a) depends on the facts, which are outside the opinion process (citing KP-0088). A footnote flagged the separate private-use question under Royse Indep. Sch. Dist. v. Reinhardt.

Citations and references

Statutes:

• Tex. Educ. Code § 37.122 (intoxicating beverages on public-school grounds or buildings), § 38.007 (alcohol-free school activities)
• Tex. Alco. Bev. Code § 109.33 (sale near a church, public school, or hospital)

Key cases:

• Henley v. State, 493 S.W.3d 77 (Tex. Crim. App. 2016) (undefined statutory terms get their plain and ordinary meaning)
• Rodgers v. Tex. Liquor Control Bd., 449 S.W.2d 292 (Tex. App.—Corpus Christi 1970, no writ) (a stadium was "not a public school" under a different statute)
• In re Acad., Ltd., 625 S.W.3d 19 (Tex. 2021) (statutes construed in context of the overall scheme)
• Royse Indep. Sch. Dist. v. Reinhardt, 159 S.W. 1010 (Tex. App.—Dallas 1913, writ ref'd) (private use of school property allowed if it does not impair school use)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0397
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0397.pdf

Original opinion text

January 18, 2022

The Honorable Robert Love
Randall County Criminal District Attorney
2309 Russell Long Boulevard, Suite 120
Canyon, Texas 79015

Opinion No. KP-0397

Re: Whether section 37.122 of the Education Code prohibits the sale of alcoholic beverages at a school banquet facility located in a football stadium, both owned by an independent school district (RQ-0417-KP)

Dear Mr. Love:

You ask whether section 37.122 of the Education Code prohibits the sale of alcoholic beverages at a school banquet facility located in a football stadium, both owned by an independent school district.¹ You state that Canyon Independent School District (the "District") rebuilt the locker-room building at the south end of a football stadium owned by the District and added a second-floor banquet facility. Request Letter at 1. You inform us that the locker room/banquet facility building is located within the enclosed perimeter of the stadium, there are no classrooms in the building, and the banquet facility is not intended for educational activities. Id. at 1, 3. You further tell us that the nearest school, an elementary school, is located about 4,000 feet, or three-quarters of a mile, away. Id. at 1. You explain that the District plans to lease the banquet facility for private events where alcohol could be served, but not at school-related or sponsored activities and not when the stadium is being used for school-related activities. Id. at 2. You ask specifically whether the banquet facility located in a football stadium owned by the District is a "building of a public school" within the meaning of subsection 37.122(a) of the Education Code. Id. at 1, 3. You state the "resolution of this question will determine whether the [District] may allow the possession, sale or consumption of alcoholic beverages" when it leases the facility for such private events. Id. at 1.

¹ See Letter from Honorable Robert Love, Randall Cnty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (July 19, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0417KP.pdf ("Request Letter").

Subsection 37.122(a) prohibits possession of

(a) . . . an intoxicating beverage for consumption, sale, or distribution while:

(1) on the grounds or in a building of a public school; or

(2) entering or inside any enclosure, field, or stadium where an athletic event sponsored or participated in by a public school of this state is being held.

TEX. EDUC. CODE § 37.122(a). Subsection (a-1) provides a single exception or defense for possession occurring "at a performing arts facility" and "during an event held outside of regular school hours and not sponsored or sanctioned by a school district." Id. § 37.122(a-1).

Neither section 37.122 nor any other provision in the Education Code defines the phrase "building of a public school." Courts construe terms not defined in a statute according to their plain and ordinary meaning. Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016). A "building" is commonly understood to be "a constructed edifice designed to stand more or less permanently, covering a space of land, usu[ally] covered by a roof and more or less completely enclosed by walls." See WEBSTER'S 3D NEW INT'L DICTIONARY 292 (2002).² A "public school" commonly means "a tax-supported school controlled by a local governmental authority; specif[ically]: an elementary or secondary school in the U.S. providing free education for the children of residents of a specified area, [or] the building housing a public school." See id. at 1836. Section 37.122 distinguishes between a "school district" in subsection (a-1) and a "public school" in subsection (a). Thus, in context, the prohibition in subsection 37.122(a) concerns a building of an elementary school or a secondary school rather than all school district buildings. Section 37.122 does not provide specific criteria for determining whether a particular building is a "building of a public school."

² See also TEX. PENAL CODE § 28.01(2) (defining "building" for certain offenses in the Penal Code as "any structure or enclosure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use"); Tex. Att'y Gen. Op. No. GA-0414 (2006) at 3 & n.3 (discussing other statutory definitions of "building").

You suggest that Attorney General Letter Opinion 98-002 may provide a definitive answer with respect to football stadiums. Request Letter at 2–4; see Tex. Att'y Gen. LO-98-002. Letter Opinion 98-002 determined that section 37.122 did not prohibit the sale of alcohol beverages at a football and track facility owned by a school district except during a school athletic event. Tex. Att'y Gen. LO-98-002, at 2. Letter Opinion 98-002 relied on a judicial opinion that considered the meaning of "public school" as it appears in a different statute. See id. at 1–2; Rodgers v. Tex. Liquor Control Bd., 449 S.W.2d 292 (Tex. App.—Corpus Christi 1970, no writ). In Rodgers, the court discussed the predecessor statute to section 109.33 of the Alcoholic Beverages Code, which authorized counties and cities to prohibit the sale of alcoholic beverages "within 300 feet of any church, public school, or public hospital." Rodgers, 449 S.W.2d at 294. The court considered the distance between the retail premises at issue and "the nearest school building," a library. Id. But the court disregarded the location of a school bus depot and a football stadium in the area, stating without elaboration that the depot and the stadium were "not public schools within the meaning of the statute." Id.

Relying in part on Rodgers, Letter Opinion 98-002 determined that the football and track facility under consideration was not a "building of a public school" under section 37.122 of the Education Code. LO-98-002, at 2. But neither Rodgers nor LO-98-002 determined, as a matter of law, that a building in a stadium can never be a "building of a public school" under section 37.122, nor did the opinions prescribe a definitive test for all cases.

Courts construe statutes in context "with a view to their place in the overall statutory scheme." In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021). A court would likely construe section 37.122 in light of a district's related duties to "prohibit the use of alcoholic beverages at a school-related or school-sanctioned activity on or off school property," and "attempt to provide a safe alcohol-free environment to students coming to or going from school." TEX. EDUC. CODE § 38.007(a), (b). Consistent with these duties, section 37.122 reflects an intent to provide an educational environment shielding students from exposure to the consumption, sale, or distribution of intoxicating beverages. See id. § 37.122(a). Absent a definitive test, a court would likely consider all the facts and circumstances concerning a building's relationship to a public school to determine subsection 37.122(a)'s application.

You tell us some facts pertinent to the analysis, such as the location of the building in relation to other public-school buildings and the lack of classrooms in the building. Request Letter at 1, 3. But other facts may bear on whether a particular building is a building of a public school under subsection 37.122(a). The lack of classrooms is relevant, but a public school could use a building for authorized purposes other than classroom instruction. Also, while all school property belongs to the District, the District might assign a public school some rights of possession and control of a building. A court could consider these and other relevant matters to determine whether a particular building is a "building of a public school" subject to the prohibition in subsection 37.122(a). See TEX. EDUC. CODE § 37.122(a). The investigation into and resolution of such fact questions is beyond the scope of the Attorney General opinion process. See Tex. Att'y Gen. Op. No. KP-0088 (2016) at 1, 3. Thus, we cannot answer as a matter of law whether a building in a stadium owned by a school district is a "building of a public school" subject to the prohibition in section 37.122 of the Education Code.³

³ While the request letter does not ask, it should be considered whether the lease of the banquet facility for private purposes meets the standard discussed in LO-98-002 for use of school property. Tex. Att'y Gen. LO-98-002 at 1 n.2 (citing to Royse Indep. Sch. Dist. v. Reinhardt, 159 S.W. 1010, 1011 (Tex. App.—Dallas 1913, writ ref'd) (explaining that an independent school district is authorized to permit school property to be used for private purposes so long as such use does not affect its use as school property)). Further, because you ask only about the sale of intoxicating beverages, this opinion does not address subsection 37.122(a)'s application in other circumstances, such as the sacramental use of alcohol by a religious organization while on leased school premises.

S U M M A R Y

Subsection 37.122(a) of the Education Code prohibits the possession of an intoxicating beverage for consumption, sale, or distribution while on the grounds or in a building of a public school. Whether a building in a stadium owned by a school district is a "building of a public school" subject to the prohibition depends on the particular facts and therefore cannot be determined as a matter of law in an Attorney General opinion.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee